The suit out of which this appeal arises was brought as follows:—The Plaintiff and Defendants Nos. 3 and 4, namely, Nathuni Singh and Tirpat Narayan, belong to the same family the father of the 1st named Brij Behari or Brij Nandan being first cousin to the other two. On the 27th November 1900 these two Defendants executed mortgages in favour of Defendant No. 1 of a ⅓th share of Touzi No. 8331 and a share of Touzi No. 8327. Defendant No. 1 sued on the mortgage and after obtaining a decree on the 22nd December 1905 proceeded to bring the mortgaged properties to sale, when the Plaintiff brought the present suit to have it declared that the mortgaged property was joint property and that the mortgage deeds were inoperative. The lower Court found that the Plaintiffs and Defendants Nos. 3 and 4 were joint at the time of the mortgages and that Touzi No. 8331 was ancestral and joint and Touzi No. 8327 was not ancestral but was joint. He accordingly held that the mortgages were not legal and that the specific shares they covered could not be sold in execution of the decree of Defendants Nos. 1 and 2 (No. 2 being the Receiver of No. 1's estate) but that they were entitled to sell the right, title and interest of Defendants Nos. 3 and 4 in the two Touzis. The present appeal is brought by Defendants Nos. 1 and 2 against this decision.
On the facts that appear on the record we agree with the lower Court in his finding that the Plaintiffs and Defendants Nos. 3 and 4 were joint. The original jointness of the three branches of the family with which we are concerned is not denied but it is alleged in the written statement of the Defendant-Appellant that a separation took place sometime before the mortgages in 1900, and it was then decided in what shares various debts, due from the three cousins should be borne. No direct evidence of any such separation has however been given and we cannot find any other evidence in the case that leads us to believe that it ever took place. The oral evidence on both sides is not of much importance, and the lower Court has rightly decided the case on the documentary evidence before it. On the Defendants-Appellant's behalf we have in the first place a considerable number of mortgages in which the shares of the various branches of the family are treated as separate interests: most of these were executed by Nathuni but there is one by Brij Nandan and several by or on behalf of Tirpat. The inference to be drawn from the documents is of course in favour of the Appellant's contention, but in our opinion is rebutted by the contents of the mortgage bonds of 1900 and those of a deed of sale of the 29th December 1896. In both of the former is to be found a statement that the family is joint, and that the money payable by the mortgagee is to be used in the payment of family debts. There follows in each case a schedule of the debts to be paid off from which it appears that in Tirpat's mortgage all branches of the family were to be benefited, it seems possible that this was the case in Nathuni's mortgage as well. The deed of sale relates to the property Touzi No. 8327 and recites the joint-ness of the three branches.
Comparing these deeds with the other mortgages to which we have referred they seem to point to the conclusion that though the three cousins might choose at times to appear to strangers as separate owners of the properties in question, yet when they were engaged in a transaction in which the others were necessarily concerned, this pretence was dropped. Another piece of evidence in favour of separation is supplied by petitions on behalf of Tirpat and by Nathuni for himself, and afterwards on behalf of the Plaintiff, to have their names registered as separate owners of No. 8331, and we find a survey khewat of 1898 which shows separate shares. This evidence, however, does not really add much to that afforded by the mortgages of earlier date than December 1900 in the view we take of these: and it is not suggested that we should take the registration proceedings as constituting a separation by themselves.
We agree with the lower Court that the written statements filed by the Plaintiffs and Defendants Nos. 3 and 4 in Musst. Kuar's rent suit do not prove that the Defendants were separate. They contain very definite statements of separation: but we are not prepared to attach much importance to this fact. The Defendants also deny liability on other grounds, and as the Judges point out they seem certainly to have been sued together.
Under these circumstances we have but little hesitation in holding that the Plaintiff and the Defendants of the second party were joint at the time of the mortgages. It is admitted that Touzi No. 8331 was ancestral property, and it consequently follows that it was joint property. The question of No. 8327 depends on the effect that is to be given to the kobala of the 29th December 1896. In terms it provides for the transfer of a share in the property in question to the representatives of the three branches of the family. Taking the family to have been joint at that time as we have held it was, it seems impossible to avoid the conclusion that No. 8327 became joint property. True it is, that subsequently Nathuni at one time mortgaged a share in the property as though it was his separate share, and that the Plaintiff and Tirpat got their names registered as owners of a share, but if this were their policy as to ancestral property there seems no reason why it should not have been followed as to the other. We accordingly hold that the Plaintiff and the second party Defendant held No. 8327 also as joint property.
The question then arises what is the result of these findings? The Plaintiff maintains that the decree of the lower Court is right, by which it is declared that the mortgages are null and void, and that the right, title and interest of Defendants Nos. 3 and 4 should be sold in execution of the mortgage decree; the Defendant-Appellant on the other hand claims a declaration that the shares of the Defendants Nos. 3 and 4 should be specified and it should be declared that he has a lien on them. The latter contention must prevail. In the case of Mohabeer Pershad v. Ramyad Singh in a very similar case Phear, J., held that a member of a joint family who had represented to his purchasers that he had power to charge joint family property which he knew he did not possess, was bound to make good his representation as far as he could by the exercise of such proprietary right over the property as he individually possessed, namely by a partition of the property by an ascertainment of the shares in which it was thereafter to be held and it was directed that the property recovered should be held by the joint family in defined shares, and that the shares of the alienating members should be held subject to a lien for the purchaser's claim. This case has been noticed by the Judicial Committee in Madho Persad v. Mehrban Singh, and according to the view of this Court in Jamuna Prasad v. Ganga Prasad Singh was approved of by their Lordships, though both those cases were distinguishable. Lastly in the case of Bimtuari Lal v. Daya Sankar Misser, reported since this case was argued, the decision in Mohabeet Pershad v. Ramyad Singh was followed. We, therefore, modify the decree of the lower Court by declaring the mortgages void only so far as they affect the specific shares of the Defendants Nos. 3 and 4. We set aside the declaration that the right and interest of Defendants Nos. 3 and 4 in the property be sold in execution of the mortgage decree, and in lieu thereof, order that the property shall be held by the Plaintiff and Defendants Nos. 3 and 4 in the proportions of each in Touzi No. 8331 and ⅓th each in Touzi No. 8327 and that the shares of Defendants Nos. 3 and 4 shall be held by them subject to the lien of Defendant No. 1 for the amount of the money advanced on the mortgages with such interest as is due thereunder.
In the Court below the Defendants paid the Plaintiff's costs. We do not feel inclined to disturb that order; but they are entitled to the costs of this hearing.
N.S.G
Decree modified.